HMA v JONAS MARCIUS

At the High Court in Edinburgh on 14 January 2015, Lady Wolffe imposed a Community Payback Order on Jonas Marcius with an unpaid work requirement of 250 hours after the accused was found guilty of assault.

On sentencing, Lady Wolffe made the following statement in court:

“Jonas Marcius, you went to trial, along with two co-accused, for the murder of Craig Grant outside the Tonik Bar in Aberdeen. In the course of the trial one of your co-accused, Kiel Hauley, pled guilty to attempted assault. The Crown accepted that plea. Your other co-accused had his plea of not guilty accepted by the Crown. The trial proceeded against you alone. After trial, the jury found you guilty of assaulting Mr Grant, by seizing him on the neck, forcing him to the ground, placing him in a neck or choke hold, compressing his neck and restricting his breathing. However, the Jury did not accept that you had asphyxiated Mr Grant or caused his death, and they deleted these matters from the charge of which they found you guilty.

You now appear before me today for sentence on that charge. The night ended with the tragic death of Mr Grant. However, you are not in law responsible for his death and I sentence you, as of course I must, on the charge for which you have been convicted.

You and your co-accused were all on duty as door stewards on the night of the 8th of August, and into the early hours on the 9th, in 2013. Shortly before closing, the decision was taken to remove Mr Grant from the bar. While he had not been long in the bar, he had entered without incident on his own, purchased a drink, taken it to a table and fallen asleep. He was roused and escorted out. He was not aggressive while being taken outside. Indeed, one witness described Mr Grant as having no power in his movements and almost dragging his feet as he was being escorted out. While there is CCTV footage showing events inside the bar and also from a certain point outside, there is a gap in that footage and it is not known in what manner he was put outside of the front door.

What is described next was of Mr Grant, now facing back toward the entrance to the bar, apparently wishing to regain entry. He was described as leaning forward a little. As one witness described it, this stance was not aggressive but the way he would stand if he were a little unsteady on his feet through having drunk too much, as Mr Grant had that night. Mr Grant was verbally aggressive toward Kiel Hauley. He made two underhanded swiping motions with his hands towards this other door steward. While Mr Grant was described as a large man, the force of his body was not behind these. Your co-accused, Mr Hauley, readily deflected the first swipe. At the second swipe, however, your colleague overreacted and swung out with his full body weight propelled towards Mr Grant’s head. That swing did not connect, because with great speed and force you grabbed Mr Grant from behind around his neck, spun him around and took him to the ground. Almost immediately, Mr Grant was pinned down on his front on the ground with you continuing to hold him around the neck area. Mr Hauley held Mr Grant’s arms behind his back and a third door steward restrained Mr. Grant’s legs. Apart from one or two kicks with his legs from that prone position, which the third door steward had no difficulty in restraining, Mr Grant did not struggle further.

At that time of night, shortly before closing the street was full of people. A number of witnesses described Mr Grant’s condition. One witness observed that as soon as Mr Grant was on the ground he did not shout or struggle at all. He was described as going blue very quickly and choking and coughing. Anther described him as being short of breath and gasping, and of his face changing colour or turning blue. Some witnesses described there being a little blood on the ground. Several witnesses described your body position such that you were leaning on Mr Grant with all of your weight, or that you were putting as much pressure on Mr Grant’s windpipe as possible. The CCTV shows that your left leg is fully stretched out to brace your position. Other witnesses described approaching the third door steward to remonstrate with him and to ask that the hold on Mr Grant’s neck be loosened. This was not done. There was evidence that by reason of the large amount of background noise from the many people milling about that it was hard to hear. Your position in relation to Mr Grant was such that his face was turned away from you. You maintained your hold for a little short of three minutes. Some friends of Mr Grant coming upon the scene were concerned. One of these was in shock as he didn’t think that Mr Grant was breathing and he believed him to be dead. The Police and ambulance arrived some minutes later. However, Mr Grant lost his life that night.

In placing your own actions that night into context, I note the evidence led at trial that as a door steward you had undergone a period of training and that a door steward is a licenced occupation and in respect of which certain standards are expected. This included training in minimising conflict and avoiding violence. This also included training on acceptable methods of restraint. A neck hold was not one of these. Indeed, so dangerous is that hold regarded to be, that it is not even demonstrated in a classroom setting. This evidence came from the same lecturer who taught the course you attended a year or so before. This is borne out by the evidence of one of the door stewards who came out from one of the nearby establishments. Tellingly, what struck him from his observation of you while you were on the ground at Mr Grant’s head were the very particular features of your holding Mr Grant’s head under your right arm with your leg stretched out. His evidence was that you would never detain someone like that because it was dangerous.

However, that night you ignored this training. You used the hold described when taking down and restraining Mr Grant. All of this was part of a chain of events that ended with Mr Grant’s tragic and untimely death. There was evidence from your police interview that you believed you were acting in defence of your fellow door stewards and to minimise the danger you felt Mr Grant posed to others.

There was a conflict of medical evidence as the cause of Mr Grant’s death and the jury have resolved this in your favour. By reason of the verdict of the jury, you are not in law responsible for Mr Grant’s death. Your culpability extends to the assault being carried out in the manner found by the jury.

I have had the benefit of a Criminal Justice Social Work Report. In it is noted that you accept that your initial manner of restraining Mr Grant was not in accordance with your training. However, you appear to minimise your conduct thereafter, because you believed that the manner in which you held Mr Grant thereafter was in accordance with accepted techniques. This is concerning, because it is inconsistent with the evidence from those responsible for your training. It is also inconsistent with the finding of the jury which included the finding that you compressed Mr Grant’s neck, held him on the ground and restricted his breathing. I note, however, that you have not been employed as a door steward since that night.

In that report it is noted that you demonstrate genuine remorse for your actions. You are assessed as a minimum risk of reoffending. You have no previous convictions. You are in the final year of a course at Aberdeen University. You are not in employment at the moment and are supported by your family. You have never served a term of imprisonment.

I have also taken into account all that has been said on your behalf in mitigation. You are a young man working hard to complete a university degree. You are in your final year. You have contributed to society in terms of voluntary charitable work. You are badly affected by what has happened and your role in it. The Criminal Justice Social Work Report is very favourable.

I have also considered the victim impact statements made by members of Mr Grant’s family. These are eloquent of the loss they have suffered following Mr Grant’s death. However, as I have explained above, by reason of the verdict of the jury, you are not in law responsible for the death of Mr Grant. You were convicted of assault and will be sentenced on that basis.

In the light of all of the information before me, I have considered whether a custodial sentence is appropriate. You have been found guilty of an assault with the features I have set out above. What you did was wholly unprofessional and contrary to all of your training. No act of assault was directed at you. There was no suggestion that the other door steward, Mr Hauley, required or requested you to intervene in the way that you did. You used a type of hold that was regarded as dangerous and never to be used. Once Mr Grant was taken to the ground and being restrained by you and the two other door stewards, you nonetheless maintained your hold in the manner described for some minutes, and after Mr Grant ceased to struggle. Whatever Mr Grant’s state of inebriation, this must have been a distressing and terrifying assault to experience, and coming as it did only a very few minutes after he was roused from sleep inside the bar.

I have considered all the circumstances. I have considered whether there is no alternative to a term of imprisonment. The circumstances of this case are unusual. Taking into account the nature of the assault, the fact that you were in a position of responsibility, and the fact that the manner of its commission was wholly contrary to the training and standards to be expected of a licensed door steward, you are at serious risk of imprisonment. Before imposing such a sentence the law requires that I find that there is no alternative to a term of imprisonment. It was said on your behalf that what you did was badly executed, not badly motivated. You are a first offender. I accept what is said on your behalf in this regard.

In the light of all of these circumstances, although with some hesitation, I do not believe that a term of imprisonment would be the appropriate or proportionate disposal in respect of the culpability of your conduct that night.

I have therefore decided to impose a non-custodial sentence. You will be made the subject of a Community Payback Order with an unpaid work requirement of 250 hours. This is to be completed within six months.”